NFF is participating in the
trial of a new tax file number declaration form (TFN) for the harvest
trail because it is one of the many ways that the Government has agreed
to work with Australia' farmers to make proposed new immigration laws
more efficient. I will leave discussion of the detail of the trial today
to others. I must, however, emphasise that this process is about much
more than a form. It is about the Government agreeing to assess the
impact of proposed laws on rural employers. It is about understanding
that a whole of Government approach must be used in assessing the impact
of new laws on rural and regional Australia. And let there be no mistake,
the impact of new laws about illegal workers have the potential to cause
friction and disruption in the horticultural industries. That is why,
at the outset, we commend the Minister for Immigration and Multicultural
Affairs, for having the foresight to agree to a trial of a form that
foreshadows a substantial change in the way horticultural employers
would be required to conduct their businesses.

A Limited History of the Proposals

What has occurred in the last
two years is very important and I just want to run through the recent
history of this issue and where matters sit politically. The Government
has for some time been determined to increase the sanctions associated
with engaging illegal workers. In March 1999, the Minister announced
a major review of the subject. The Review of Illegal Workers2 reported
in November 1999. NFF made two submissions to the inquiry. We urged
the Government to ensure that people who deliberately flout the system
and who smuggle people into this country on an organised basis should
have the book thrown at them. Send them to jail. However, the consequences
of, say, employing a working holiday maker whose visa had expired but
who was overstaying for a week should attract a relatively minor penalty
because society is little damaged.

In addition, we emphasised the
importance of recognising the difficulties that confront horticulturists
in handling the sheer numbers of itinerant, casual workers during a
harvest period. Loading up growers with a range of new, complex administrative
tasks is just not feasible. Work rights along the harvest trail are
difficult to check because of the nature of the harvesting task and
because of the high administrative work load already placed on growers
by Australia's complex industrial relations and taxation systems. The
immigration system is hardly simple and the details of visas are difficult
to understand.

Add to this the horticultural
industry's rapid growth, with labour and skills shortages as major constraints
on an even greater pace of growth, and you have a volatile mix. Total
employment in horticulture is estimated at about 100,000, up about 20%
on 1995. 3 Despite this increase in employment, I do not need to remind
this audience of the difficulties in attracting labour. One of the ways
that horticulturists have dealt with the issue of labour shortages has
been through engaging working holidaymakers, young people from 11 different
countries. Government has acknowledged the beneficial role of working
holidaymakers both to tourism, cultural diversity and the harvest industries.4
The number of Working Holiday visas granted has increased gradually
in recent years, from around 35 000 in 1994-95 to almost 75 000 in 1999-2000.5

The fact that growers regularly
engage a host of young people from overseas who are generally eager
and efficient workers adds to the difficulties of growers in identifying
those people who might have an inappropriate visa. It gets them used
to engaging people from overseas, and who can work here quite legally.

However, the Review of Illegal
Workers came up with a range of recommendations that NFF thinks just
won’t work in the horticulture industry. The Review made recommendations
about a system of sanctions for employers that we remain opposed to
and which, we believe, are wrongly conceived. The Government, however,
accepted the recommendations of the Review in December 1999.

The sanctions that were touched
upon by the Review and have been expanded in detail subsequently by
the Department are designed to reflect a range of offences. They are
designed to stop the people smugglers mentioned earlier but they would
also be highly relevant for small employers who might be issued with
a “parking fine” or infringement notice for having an illegal worker
present on their property. The sanctions are reduced to "tiers":

Tier One a fault offence prosecuted
before a court;

Tier Two a strict liability
offence prosecuted before a court;

Tier Three an infringement penalty
for a lower level offence, which, if unpaid or is contested, converts
to a prosecution for a strict liability offence under Tier Two.

The tier two and tier three
levels concern exactly the same offences, a strict liability offence
with a statutory defence. The difference is not in fact between offences
but in the sanctions with the lowest level being different only because
it is invoked through the issue of an infringement notice. Strict liability
is the problem. Strict liability means liability without fault. When
a prosecution is launched that means the Government does not need to
prove the intention, knowledge or negligence of an employer. They could
just point to the fact that an illegal worker was working on the property.
Time expired. Here's your parking fine!6

At tier 3 (confusingly, the
lowest level of offence), instead of being prosecuted, an offender would
be given the choice of paying an infringement penalty. If an employer
was, however, prosecuted the offence would be the same as tier two.
In this regard, NFF holds a legal opinion that the proposed infringement
notice provisions would probably be invalid on the grounds that they
would be inconsistent with the Constitution, in that they would provide
for penalties without conviction by a court. The Department has responded
to that argument. It has rejected the legal opinion. However, it has
said that as a result of the consultations that have been undertaken
between Government and industry for some time, there will be a change
to the proposed law. Where growers are issued with the infringement
notice, it will be able to be challenged in a Magistrate's Court. If
the court decides that the infringement notice was rightly issued, the
same maximum penalty that would otherwise have applied will apply, that
is $1,100 for an individual or $5,500 for a body corporate.

The penalties proposed to be
associated with a tier one offence are high at a maximum of $13,000
for an individual and $66,000 for a body corporate and/or 2 years imprisonment.
Tier two would have previously attracted a maximum penalty of $5,500
for an individual and $27,500 for a body corporate. But, as I said,
the tier one penalty in lieu of prosecution and on prosecution will
now be $1,100 for an individual and $5,500 for a body corporate

Despite that concession, we
believe that this harsh regime is an overreaction. Certainly, the tier
one offence levels have attracted very fierce comments from growers.
We act for growers and we want an alternative criminal regime. NFF does
not oppose the creation of harsher criminal penalties for those who
knowingly employ or engage an illegal worker. Yes, stop the people smugglers.
We suggest the creation of a specific offence which reads as follows:

"An owner of a business
who knowingly engages a non-citizen without work rights to work for
the business is guilty of an offence".

This offence could attract harsh
penalties. But it would not be a strict liability offence. In other
words, the prosecution would need to prove the mental element (the intent
of the offender), as is normal with criminal matters.

NFF wishes to make it clear
that we support a stricter offence regime based on punishing those who
knowingly engage and exploit illegal workers. We reject the view that
growers as employers have traditionally been willing to exploit the
labour of illegal workers and are therefore now anxious not to have
sanctions imposed. Admittedly, we need working holiday makers to assist
with harvest but that is a relationship that benefits everyone.

The Minister has put the proposed
criminal regime on hold. We thank him for this period of consultation
and for his willingness to listen. The Minister and the Department have
consulted widely and the trial of this form is part of that continuing
consultation. As well, we understand that part of the Government's hesitation
comes from the conflicting advice it received from another Government
inquiry, an inquiry into the Harvest Trail.7

NFF supports the recommendations
of the report entitled Harvesting Australia in its entirety. The recommendations
about the use of illegal labour are loaded with common sense. Recommendation
10.19 is in three parts as follows:

10.19 (a) In seeking to limit
the use of illegal labour in Australia, the Government does not take
actions that would affect the economic viability of growers.

(b) In particular, DIMA does
not require growers to request itinerant workers to provide a passport
or birth certificate before commencing work. Instead DIMA consider legislation
to impose significant penalties on employers who knowingly or recklessly
employ a non citizen without work rights.

(c) To assist in excluding illegal
workers from the harvest industry over the long term, the horticultural
industry encourage organizations issuing harvest labour skills cards,
to not issue them to illegal workers. (This recommendation is linked
to recommendation 5.29).

We endorse these recommendations.
Government has implemented some of the recommendations in the Report
but has not formally responded in full to the Report.

Why this Trial ?

Recommendation 10.19(b) encapsulates
NFF's view. Why are we then supporting this trial of a form that asks
growers whether or not they have sighted documents such as a passport
or a birth certificate? That is because the Government has not backed
down on its proposals to introduce the criminal regime that I have shortly
outlined. It has not agreed to accept the Harvest Trail solution. So,
in assessing whether or not the harsher regime will be possible to implement,
we have had discussions with Government. Government consulted growers.

Overwhelmingly, growers told
Government not to introduce a comprehensive new form recommended by
its 1999 Review team that was to be called a Work Rights Declaration
Form and was to have been retained for 5 years and would have been a
very real burden in terms of administration. Instead, again, we have
focussed upon the Harvest Trail Report’s recommendations and ATO and
the Department have made a suggestion about a new form. The new TFN
for the Harvest Trail not only collects tax information but asks about
employees’ work rights. This proposal derives from but is slightly
different to the Harvest Trail Report. For example, Recommendations
7.35 and 7.36 had this to say about the then Employment Declaration
Form, now the TFN:

7.35 The ATO, in consultation
with DIMA, review the possibility of providing WHMs with a tax file
number at the same time that they are issued their working visa, with
the number incorporated into the visa and clearly visible.

7.36 The ATO produce a simplified
version of the Employment declaration form for harvest workers which
restricts the information required to name, postal address, tax file
number, bank account and Australian residential status.

Thus the form under trial is
not exactly in terms of these recommendations. But it is a major step
forward and it deserves our attention.

Conclusion

Your participation in the trial
will help us to cement our certainty that the Harvest Trail report got
it right and you will help to further add fuel to the flames licking
around the Government's prior proposals. Your co-operation will help
advance the recommendations in the Harvest Trail report so that work
rights along the Harvest Trail aren’t seen as a burden to the growers'
task but are part of a concerted effort to jail people smugglers. Co-operation
has produced results so far and I urge you to lend support to this trial.
Co-operation has produced results, so let it continue.